United States v. Sosaeoleisah Refert ( 2008 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 07-1158
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* District of South Dakota.
Sosaeoleisah Refert, also known as *
Sosaeoleisah C. Bluespruce, also *
known as Leisah Bluespruce, also *
known as Lisa Refert, *
*
Appellant. *
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Submitted: November 13, 2007
Filed: March 13, 2008
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Before RILEY, BOWMAN, and SMITH, Circuit Judges.
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SMITH, Circuit Judge.
Following a jury trial, Lisa Refert was found guilty on one count of health care
fraud, in violation of 18 U.S.C. § 1347, and four counts of making a false claim
against the United States, in violation of 18 U.S.C. § 287. Refert falsely represented
herself to be of Native American descent in order to obtain free medical services.
Refert was sentenced to three months in custody on each count, to run concurrently,
and she was ordered to serve three years of supervised release on each count, two
counts to run consecutively and the remainder to run concurrently. Refert was also
ordered to pay restitution. On appeal Refert argues that (1) the jury instructions were
in error; (2) two of her false claims counts lacked sufficient evidentiary support; (3)
the district court erred in including costs of services provided during emergency room
visits in the restitution order; and (4) the district court erred in ordering two of the
supervised release terms to be served consecutively. We affirm in part and reverse in
part.
I. Background
Lisa Refert1 is the adopted daughter of Richard and Edna Refert. She was born
in 1962 in Long Branch, New Jersey. According to research done by an investigator
for the Department of Health and Human Services (DHHS), Refert's biological mother
is Caucasian but her biological father could not be identified. Refert claims that her
biological father was Chester Bluespruce, a Native American, who she says died in
1993.
Refert claims to remember very little of her childhood due to repressed
memories resulting from abuse. Refert graduated from a New Jersey high school and
then attended Rutgers University. In 1991, Refert graduated from Seton Hall Law
School, after which she clerked for a New Jersey state judge and worked at various
New Jersey law firms.
In 1997 Refert applied for the position of Cheyenne Reservation Associate
Tribal Judge. In her application, Refert stated that she had attended an elementary
school near the Northern Cheyenne Reservation in Montana. She also represented that
she had attended a Montana school that enrolled 95% Native American students, that
she had spent a substantial portion of her life on a reservation, that she was born in
1
Lisa Refert claims that she has legally changed her name to Sosaeoleisah
Bluespruce Refert. She is also referred to as Sosaeoleisah C. Refert, Sosaeoleisah C.
Bluespruce, Leisah Bluespruce, and Lisa Refert. The district court found that Refert
has not properly changed her name.
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Sheridan, Wyoming, and that she was affiliated with the Northern Cheyenne Tribe in
Montana. Refert was not selected for the position, but she was hired a few months
later as Chief Tribal Judge by the Cheyenne River Tribe. In February 1998, Refert
moved to Eagle Butte, South Dakota and began her work. In November 1999, Refert
was removed from that position and began practicing law mostly in the tribal court.
In November 2001, the Cheyenne River Tribal Council addressed whether
Refert was actually enrolled as a member of the Northern Cheyenne Tribe. At this
meeting, Refert claimed that she was Native American and that she had been enrolled
in the Northern Cheyenne Tribe since birth. She stated that her personnel file
contained verification of this information, as did her Indian Health Services (IHS) file.
Her personnel file, however, did not contain such documentation—neither did her IHS
file. Refert later claimed that she lost her copies of the documents proving she was a
Tribe member when the roof blew off her mobile home.
IHS, an agency within the DHHS, provides limited free medical services to
eligible Native Americans. During Refert's time in South Dakota, between 1998 and
2003, she received free health services from IHS based on her assertion that she was
eligible as a member of the Northern Cheyenne Tribe and was three-quarters Native
American. During the investigation into her eligibility, Refert represented that she had
documents establishing her tribal enrollment but she never gave those documents to
investigators. A DHHS investigation uncovered no proof that Refert was enrolled in
any Native American tribe.
In October 2003, IHS informed Refert by letter that, based upon its information,
Refert had never provided the documentation necessary to establish her eligibility for
services. The letter asked Refert to provide the appropriate documentation within 60
days or face termination of IHS services. Refert never submitted the required
documentation.
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On August 17, 2005, an indictment was filed charging Refert with one count
of health care fraud, in violation of 18 U.S.C. § 1347, and four counts of making a
false claim against the United States, in violation of 18 U.S.C. § 287. Although Refert
received free medical services on numerous occasions, the indictment singled out four
specific visits: March, 24, 2002 (an emergency room visit); October 15, 2002 (an
outpatient pharmacy visit); July 27, 2003 (an emergency room visit); August 25, 2003
(an outpatient pharmacy visit).
During Refert's two day jury trial, the government called Nancy Davis, the
Deputy Area Director for IHS, to testify. The government introduced a briefing sheet
that IHS shares with patients to explain IHS eligibility. Davis testified that a patient
must be a member of a federally recognized tribe or must prove descendancy of a
member of a federally recognized tribe to be eligible for free IHS services. Davis
testified that each tribe has the authority to create its own membership criteria and that
membership is typically based on blood quantum. Davis also testified that because
IHS is only funded at fifty percent of its need, the burden is on the patient to prove
their eligibility. Davis, however, acknowledged that in the past, some individuals who
have not proven eligibility nonetheless received free care over a long period of time.
Davis also explained that IHS will treat any person for genuine emergencies, even if
the individual is ineligible for IHS. The cost of the services is then billed to the person
or their insurance company.
With respect to Refert specifically, Davis testified that Refert filled out a
standard new patient sheet on her first visit to IHS. On that document, Refert wrote
that she was born in Sheridan, Wyoming, was enrolled in the Northern Cheyenne
Tribe, and had three-quarters Native American blood. On another similar form, Refert
wrote down a different birth place, Lame Deer, Wyoming, and added that her mother
was born in Onondaga, New York. Davis testified that Refert never produced the
documents necessary to show that she was eligible to receive IHS services.
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On cross-examination Refert's attorney asked Davis if IHS used the IHS
briefing sheet, which gave a five-page overview of IHS services and eligibility, to
determine eligibility. Davis responded that the briefing sheet was a resource created
to share with people that was easier to understand than the actual regulation. Davis
reiterated throughout her testimony that the short explanatory document was not the
entire IHS regulation.
Refert's attorney entered the primary IHS regulation into evidence and
questioned Davis about following the language in the regulation:
Generally, an individual may be regarded as within the scope of the Indian
health and medical service program if he/she is regarded as an Indian by the
community in which he/she lives as evidenced by such factors as tribal
membership, enrollment, residence on tax-exempt land, ownership of
restricted property, active participation in tribal affairs, or other relevant
factors in keeping with general Bureau of Indian Affairs practices in the
jurisdiction.
42 C.F.R. § 136.12(a)(2).
Davis testified that a tribe may choose to authorize non-Native American access
to IHS services but it is customary for a resolution to be presented to the Tribal
Council in order to officially recognize the individual. Davis testified that the specific
tribe may decide if an individual is "regarded as an Indian by the community" and
therefore should be eligible for IHS. Davis testified that working in the community
and associating with its members does not create eligibility for IHS services in the
absence of tribal action.
In her defense, Refert testified that she submitted the appropriate eligibility
documents with her IHS application for benefits but that those documents could not
be found because of a political vendetta or conspiracy against her. When asked by her
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attorney if she was a member of the Native American community she answered that
she was. Refert also testified that she knew she had to be eligible to receive treatment
from IHS.
The district court selected Eighth Circuit Pattern Jury Instruction 6.18.287 to
explain the elements of the false claim charges in Instructions 10 through 14 given to
the jury. Instruction 3 and 4 further explained the government's burden of proof.
Instruction 9 stated the elements of health care fraud.
The jury found Refert guilty on all counts. The district court sentenced Refert
to serve three months in custody on each count to run concurrently; ordered her to
serve three years of supervised release on each count, with two counts running
consecutively; and, ordered Refert to make restitution in the amount of $8,689.45.
II. Discussion
On appeal, Refert argues that (1) the court erred in instructing the jury; (2)
insufficient evidence supports two of her false claim counts; (3) the court erred in
including costs of services provided during emergency room visits in the restitution
order; and (4) the court erred in ordering two of the supervised release terms to be
served consecutively.
A. Jury Instructions
Refert first argues that the jury instructions were inadequate because they
lacked an instruction on the law of IHS eligibility. Refert claims this error seriously
affected the fairness of the proceeding and necessitates a new trial. Because Refert did
not challenge the jury instructions below we review for plain error. United States v.
Falcon, 477 F.3d 573, 577 (8th Cir. 2007). "Plain error only exists if (1) there was an
error, (2) the error was plain, (3) the error affected [Refert's] substantial rights, and (4)
a failure to grant relief would seriously affect the fairness, integrity, or public
reputation of judicial proceedings." Id. (internal citation and quotations omitted).
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Refert argues, for the first time on appeal, that the jury should have been
instructed that under the IHS regulations an individual may be considered eligible for
free IHS health care if they are "regarded as an Indian by the community." She relies
on the following IHS regulation:
Generally, an individual may be regarded as within the scope of the
Indian health and medical service program if he/she is regarded as an
Indian by the community in which he/she lives as evidenced by such
factors as tribal membership, enrollment, residence on tax-exempt land,
ownership of restricted property, active participation in tribal affairs, or
other relevant factors in keeping with general Bureau of Indian Affairs
practices in the jurisdiction.
42 C.F.R. § 136.12(a)
Refert claims that the government unfairly focused on blood quantum and
family membership as bases for eligibility. She argues that the government's entry of
the IHS eligibility briefing sheet into evidence may have led the jury to believe blood
quantum and heredity were the only bases for IHS eligibility. The record below,
however, reveals that the jury heard testimony on all bases of IHS eligibility—Davis
was directly examined and cross-examined on the subject, and the entire regulation
was admitted into evidence. Additionally, Refert did not place adequate evidence in
the record that Refert was "regarded as an Indian by the community." We hold that the
absence of a jury instruction on "regarded as an Indian by the community" was not
plain error. See United States v. Youngman, 481 F.3d 1015, 1019 (8th Cir. 2007)
("Jury instructions are adequate if, taken as a whole, they adequately advise the jury
of the essential elements of the offense charged and the burden of proof required of
the government.") (internal citation and quotations omitted).
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On the fraudulent claims counts, the district court used Eighth Circuit Pattern
Jury Instruction 6.18.287 to explain the elements of the false claim charges in
Instructions 10 through 14. The elements of the 18 U.S.C. § 287 counts were listed as:
1. On or about [_____________], the defendant made or presented to the
United States Department of Health and Human Services, Indian Health
Service, a claim in the form of payment for health care benefits, items,
or services, upon and against the Department of Health and Human
Services, Indian Health Service, a department and agency of the United
States.
2. The claim was false, fictitious, or fraudulent in that the defendant
knew she was not eligible to receive health care benefits, items, or
services paid for by Indian Health Services.
3. The defendant knew the claim was false, fictitious, or fraudulent.
4. The false, fictitious, or fraudulent claim was material to the
Department of Health and Human Services, Indian Health Service.
For you to find the defendant guilty of the crime charged in Count [] of
the indictment, the government must prove all of these essential elements
beyond a reasonable doubt. Otherwise, you must find the defendant not
guilty of this crime.
This instruction advised the jury of the essential elements of the offense as stated in
the relevant statute:
Whoever makes or presents to any person or officer in the civil, military,
or naval service of the United States, or to any department or agency
thereof, any claim upon or against the United States, or any department
or agency thereof, knowing such claim to be false, fictitious, or
fraudulent, shall be imprisoned not more than five years and shall be
subject to a fine in the amount provided in this title.
18 U.S.C. § 287.
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Jury Instruction 9 explained the elements of the health care fraud count:
The crime of health care fraud, as charged in Count I of the indictment,
has two essential elements, which are: (1) The defendant knowingly and
willfully executed, or attempted to execute, a scheme or artifice (a) to
defraud a health care benefit program; or (b) to obtain, by means of false
or fraudulent pretenses, representations, or promises, any of the money,
property or services owned by, or under the custody or control of, any
health care benefit program, (2) In connection with the delivery of or
payment for health care benefits, items or services. . . .
These elements match our description of the elements of health care fraud:
to convict [defendant] of health care fraud, the government had to prove
beyond a reasonable doubt that he knowingly and willfully executed, or
attempted to execute: a scheme or artifice--(1) to defraud any health care
benefit program; or (2) to obtain, by means of false or fraudulent
pretenses, representations, or promises, any of the money or property
owned by, or under the custody or control of, any health care benefit
program in connection with the delivery of or payment for health care
benefits, items, or services.
United States v. Boesen, 491 F.3d 852, 856 (8th Cir. 2007) (internal citation omitted).
The government's burden of proof was also adequately explained in the jury
instructions. Because the jury instructions, taken as a whole, adequately advised the
jury of the essential elements of health care fraud, the elements of the crime of making
a false claim against the United States, and the government's burden of proof
requirement, we conclude that the instructions do not constitute plain error.
Youngman, 481 F.3d at 1019.
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B. Sufficiency of the Evidence
Refert next argues that her false claim convictions on Counts II and IV
involving visits to the emergency room should be reversed due to insufficient
evidence. In essence, she argues that those claims could not be fraudulent because the
hospital was required to treat her regardless of her eligibility. Because Refert has not
raised this issue before or preserved this issue for appeal, we review for plain error.
United States v. Selwyn, 398 F.3d 1064, 1066 (8th Cir. 2005). "We review the facts
in the light most favorable to the verdict, and will resolve conflicts in favor of the
verdict; we will sustain the verdict if there is any interpretation of the evidence that
could lead a reasonable-minded jury to find the defendant guilty beyond a reasonable
doubt." Id.Count two of Refert's indictment was based on a March 24, 2002, visit to the
emergency room for a headache—Refert was given a prescription and discharged ten
minutes later. Count four was based on a July 27, 2003, visit to the emergency room
in which Refert sought treatment for cold-like symptoms and stated that she needed
an inhaler, and she was diagnosed as having bronchitis. For both visits, the jury found
Refert guilty of making a false claim against the United States by receiving free care
from IHS while ineligible. Refert argues that the convictions for these visits should
be reversed because IHS is required to treat even ineligible individuals on an
emergency basis. The relevant regulation states:
(a) In case of an emergency, as an act of humanity, individuals not
eligible under § 136.12 may be provided temporary care and treatment
in Service facilities.
(b) Charging ineligible individuals. Where the Service Unit Director
determines that an ineligible individual is able to defray the cost of care
and treatment, the individual shall be charged. . . .
42 C.F.R. § 136.14.
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Although the hospital was required, as an act of humanity, to treat non-Native
Americans in the event of an emergency, the regulation clearly states that those
emergency services are not free. Id. A reasonable jury could find that Refert made a
false claim during these two emergency room visits because the hospital provided free
services to Refert based on her representations that she was an enrolled tribal member
with three-quarters Native American blood. A reasonable jury could find that Refert
made a false claim because she did not represent to IHS that she was an ineligible
person seeking emergency services, instead she represented that she was eligible for
free services. The record shows that Refert never presented the documentation
necessary to prove she was eligible for IHS services, yet she received free services
during the emergency room visits addressed in Counts II and IV. Sufficient evidence
exists that could lead a reasonable-minded jury to find Refert guilty of making false
claims during the emergency room visits at issue. Therefore, we sustain the verdict.
C. Restitution
Third, Refert argues that costs from the emergency room visits in Counts II and
IV should be removed from her restitution order because she claims that the hospital
was required to provide emergency care to her regardless of her eligibility. Because
Refert did not challenge this restitution order previously, we review for plain error.
United States v. Piggie, 303 F.3d 923, 928 (8th Cir. 2002).
Government agencies that are victims of offenses involving fraud and deceit are
entitled to restitution under 18 U.S.C. § 3663A(a)(1), the Mandatory Victim
Restitution Act. United States v. Senty-Haugen, 449 F.3d 862, 865 (8th Cir. 2006). A
district court does not plainly err when it includes losses caused by the specific
conduct that is the basis for the offense of the conviction in the restitution order, as
opposed to incidental or consequential damages. Piggie, 303 F.3d at 928. As
explained above, although IHS has a duty to treat even an ineligible individual in an
emergency, ineligible individuals are not entitled to free emergency care. Nor are they
entitled to care in non-emergency situations. Therefore, because Refert obtained free
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emergency care services based on her false representations made to IHS, the district
court did not plainly err in ordering restitution for the costs incurred by the
government for those visits.
D. Supervised Release
Finally, Refert argues that the portion of her sentence that requires her to serve
two of her supervised release terms consecutively should be reversed under Eighth
Circuit precedent. Because Refert neither objected to this portion of the sentence at
the sentencing hearing nor filed a motion requesting the sentence be corrected, we
review for plain error. United States v. Ristine, 335 F.3d 692, 694 (8th Cir. 2003). The
government concedes that this portion of the district court's sentence is plain error.
In United States v. Gullickson we held that it was impermissible to sentence a
defendant to consecutive terms of supervised release under 18 U.S.C. § 3624(e) which
states that "The term of supervised release commences on the day the person is
released from imprisonment and runs concurrently with any Federal, State, or local
term of probation or supervised release or parole for another offense to which the
person is subject. . . ." 982 F.2d 1231, 1235 (8th Cir. 1993); 18 U.S.C. § 3624(e). We
have held that 18 U.S.C. § 3624(e) "unambiguously states that terms of supervised
release on multiple convictions are to run concurrently. We are of course bound to
follow the plain language of the statute." Gullickson, 982 F.2d at 1236. Therefore, we
conclude that the district court plainly erred in sentencing Refert to consecutive
supervised release terms.
III. Conclusion
Accordingly, we affirm Refert's conviction on all counts and affirm the
restitution order of the district court. We reverse the district court's imposition of
consecutive terms of supervised release and remand for resentencing consistent with
this opinion.
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